IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150011615 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150011615 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150011615 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. 2. He states he dropped out of high school at the age of 17 in the 12th grade. The Army promised him and his parents that he would be able to complete his general education degree (GED), but this did not happen. His superiors told him if he accepted a discharge, he could file for an upgrade to honorable if he remained trouble free for 6 months. He maintains he remained trouble free and returned to school to complete his GED as promised. 3. He provides his self-authored statement and DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 9 January 1980. 3. His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on: a. 3 November 1980, for leaving his guard post before he was properly relieved on or about 16 August 1980. His punishment consisted of reduction from E-2 to E-1 (suspended for 90 days) and 7 days of restriction and extra duty. b. 16 February 1982, for willfully disobeying two lawful orders on or about 23 January 1982. His punishment consisted of 14 days restriction and extra duty. c. 3 March 1982, for willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 12 February 1982 and being disrespectful in language to a superior NCO on or about 9 February 1982. His punishment consisted of reduction from E-3 to E-2 (suspended, to be automatically remitted if not vacated before 2 May 1982), a forfeiture of $50.00, and 14 days of extra duty. 4. On 10 March 1982, the company commander recommended the applicant receive a bar to reenlistment. He cited two NJPs for disobeying a lawful order, three counseling statements for being absent from his place of duty, disrespect toward a superior NCO, and failure to maintain security of a weapon as justification for the bar to reenlistment. On 15 March 1982, the battalion commander approved the bar to reenlistment. 5. A copy of the commander's notification letter to the applicant concerning his intent to separate him from the Army is not contained in his available record. However, his record contains a Respondent's Election of Rights that shows on 12 April 1982, he consulted with military counsel. Counsel advised him of the basis for the contemplated action to separate him from the Army for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, and the effects and rights available to him. He elected consideration of his case by a board of officers, personal appearance before that board, and requested representation by a consulting counsel. 6. In a memorandum, dated 14 May 1982, the applicant's commander stated that the applicant reconsidered his election of rights and elected to waive presenting his case before a board of officers. 7. On 25 May 1982, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 8. On 8 June 1982, he was discharged under the provisions of Army Regulation 635-200, chapter 14-33b(1), misconduct – frequent incidents of a discreditable nature with civil or military authorities with a characterization of service listed as under other than honorable conditions. He completed 2 years and 5 months of creditable active service. 9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The evidence of record shows the applicant’s discharge proceedings were conducted in accordance with law and regulations in effect at the time. The characterization of his discharge was commensurate with the reason for discharge and his overall record of military service in accordance with the governing regulations in effect at the time. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. There are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances, which warrants the upgrade. Therefore, the applicant’s contention that he was told his discharge would be upgraded after 6 months is insufficient as a basis to upgrade his discharge. 3. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service does not meet the criteria for a general or an honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011615 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011615 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2